On July 25th, the Supreme Court of Texas issued five identical decisions indicating that it would hold off on deciding the constitutionality of a provision of the Family Code dealing with appeals from terminations of parental rights. That’s probably a hint to the Texas Legislature to address the issue in the next session. All well and good. But what should trial judges do while waiting for a new statute?
Well, two of today’s twenty-two decisions from the Texas Supreme Court deal with appeals from terminations of parental rights. One case, In the interest of G.B., et al., reiterates the high court’s position that it will hold off on deciding the constitutional issues. The other, In the interest of M.N., a child, offers some help for trial judges in these in-between times.
Under the Family Code, terminated parents have fifteen days to file their statement of appellate issues. But is that fifteen days a hard-and-fast deadline, or may a trial court grant extensions? Today, the Supreme Court of Texas said that trial courts have the authority to extend the fifteen day deadline.
But there was a lone dissent. Rather than butcher Justice Willett’s brief words, here they are
For better or for worse, the Legislature in Family Code section 263.405(b) set a firm fifteen-day deadline for filing a statement of points for appeal. Reasonable people can dispute the efficacy of this hard-and-fast deadline, but few can dispute its clarity.
I fully understand the Court’s desire for leniency in enlarging the fifteen-day deadline beyond the statute’s terms. Appealing the termination of one’s parental rights is serious business, and having such rights vanish because of a counsel’s (or pro se litigant’s) mis-calendaring is nigh unfathomable. On the other hand, every day of childhood is irreplaceable, and society benefits when children are placed in safe, secure and loving homes as quickly as possible.
The Legislature wanted these cases to proceed with alacrity, reducing post-judgment delay by barring appellate consideration of tardy points. I would take lawmakers at their word: fifteen days means fifteen days. Squeezing out delay, however, does not permit squeezing out due process. It is one task to honor a fast-tracking statute’s unambiguous text and refuse to judicially rewrite it under the guise of construction. It is quite another to examine whether that text, however plain, unconstitutionally restricts due process or other guarantees. Terminating parental rights cannot warrant terminating constitutional rights.
I would (1) hold that court-made rules of procedure do not trump the Family Code’s fifteen-day deadline and then, assuming preservation, (2) confront head-on whether this statutory deadline violates Durham’s due-process rights or any other constitutional provision. Because the Court does neither, I respectfully dissent.
In a footnote, Justice Willett notes that the Supreme Court of Texas has granted review of a petition squarely presenting the constitutional questions. I still stand by my earlier prediction that the issue won’t be decided until the Legislature takes another look at this. But I could be wrong. The 81st Regular Session of the Texas Legislature convenes on January 13th, 2009. If there aren’t any good bills in the works on day one, Justice Willett may have an easy time of bringing other Justices over to his way of thinking.